January 2012

As a follow-up to my colleague Linda Norcross’ excellent blog piece last week, I thought I would provide our blog readers with another entertaining read on the controversial “aesthetic functionality” doctrine of trademark law. Last February, the Ninth Circuit added to the confusing annals of aesthetic functionality doctrine by denying trademark protection to the iconic design displayed below.

Famed high-fashion footwear designer Christian Louboutin is seeing red. Louboutin, famous for a lipstick red sole featured on its high-end heels, is embroiled in an ongoing legal battle with rival design house Yves St. Laurent (“YSL”), over the right to sell footwear bearing Louboutin’s signature red sole. read more

I know it seems like I keep harping on the Digital Millennium Copyright Act's “safe harbor” provision, 17 U.S.C. § 512(c), but the DMCA safe harbor is beneficial for both copyright owners and service providers, yet appears to be underutilized by both. The Ninth Circuit recently decided a copyright case between Universal Music Group (UMG), the recording company and music publisher, and Veoh Networks, which operates a video-sharing website that allows users to upload and share videos. The opinion largely focused on the meaning of the DMCA safe harbor provisions and provides guidance for copyright owners and service providers in the Ninth Circuit. read more

For over a decade, federal district courts have been adopting specialized local rules of practice for patent cases with varying degrees of success. Like the Federal Rules of Civil Procedure, the new local rules for patent cases are designed to promote the just, speedy, and inexpensive determination of patent actions and proceedings. On August 1, 2011, the United States District Court for the District of Nevada became the latest district court to adopt specialized local rules of practice for patent cases. The Court’s new local patent rules are arguably some of the most progressive in the country. So is Nevada now the latest best place in the country for patent litigation? The answer may surprise many: it depends. Parties with particular strong claims or defenses will welcome Nevada’s new patent rules. read more

Among the sweeping changes to the U.S. patent system by the Leahy-Smith America Invents Act, enacted on September 16, 2011, are reforms to the false marking statute. The false marking statute safeguards against the use of a false patent mark with an intent to deceive the public and was designed to permit a private individual to sue on behalf of the U.S. government. One-half of any recovered penalty is awarded to the person asserting the false marking claim while the other half goes to the U.S. government. read more